Heller: A great ruling with many ramifications

By Tim Inwood

On Thursday June 26th the Earth trembled. No it was not an earthquake but the collective thud of thousands of anti gun activists, fainting dead away after realizing their life’s work had just been flushed into the Potomac River. On that day the United States Supreme Court made history, they finally handed down a ruling saying the Second Amendment does indeed recognize an individual right to keep and bear arms. In doing so, they dealt a deathblow, to the thirty-two year old handgun ban of Washington D.C.

This terrible law had cost thousands of people their lives in our Nation’s Capitol over those three decades. The law virtually outlawed self-defense and made Washington D.C. a safe haven for criminals to ply their trades. The miscreants took full advantage of the concept that it is easier to assault an unarmed defenseless victim, than an armed one. Thus the suburbs of D.C. in Virginia and Maryland were much safer for their citizens.

What is stunning is the way the City continued to defend this failed law right to the end.

In the months following March when the Heller case went before the Supreme Court, the District of Columbia had resorted to roadblocks searching vehicles for weapons. Footage of this sort of thing is what we expect to see come from Baghdad, or Kabul in a war zone, not within the shadow of the Capitol rotunda. The fact that they had to resort to this Fourth Amendment violating tactic, while their neighboring towns in Virginia and Maryland did not, should have stirred thought in a rational person to realize something is very wrong, and what was wrong was the gun ban.

For a city with a handgun ban, homicides committed with firearms were very high. Clearly the only armed people were thugs and the citizens were their prey. The District did fallaciously argue that their law allowed long gun ownership and they could be used for defense. The first part was true, the second a lie as the law also said that the long gun had to be rendered inoperable by trigger lock, cable lock, or that it had to be disassembled. As we all know, a housebreaker is unlikely to give you two minutes to reassemble or unlock your gun to make it fair. Justice Antonin Scalia noted this issue in the ruling:

We must also address the District’s requirement (as
applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense… The non-existence of a self-defense exception is also suggested by the D. C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders, see McIntosh v. Washington,

Hence the law-abiding people were in reality left defenseless.

The law was indefensible, and that it was struck down was quite just. Having lived in the Washington D.C. metro area in the '80s, I heard many horror stories. The one I remembered with the most vivid detail was that of a co-worker. I told his story in a piece I wrote for BuckeyeFirearms.org in December 2006. As it is germane, I will repeat it here:

A co-worker of mine who lived in the District related an interesting story to me. He lived in Washington, despite the crime to protect his Grandmother who lived down the street. She refused to leave the town house she had lived in since prior to World War II. Having been mugged and having his home broken into, he procured a Jennings .22lr pistol for protection.

One night he came home and a thief was in his house. He rushed up the stairs with the criminal hot on his tail. He dove into his bed while sliding his hand under the pillow to grab his gun, and as he turned and aimed it at the door the robber came in. The thug saw the pistol and then calmly said "Man, you better let me go....you are in more trouble for having that than I am for being here."

My friend thought about it, realized the scumbag was right, and let the guy go. He then got nervous about how cool and calm the guy had been about it, ran the gun down to his grandmothers down the street, and hid the gun and his box of ammo there without her knowing it. He visited with her for a bit and then returned home.

When he arrived, about an hour later, a Metro Washington D.C. police car with two officers were waiting for him. They patted him down and said they got a call about a gun in his possession. They already had a warrant to search his house. Naturally, they found nothing. A few days later my friend's home was broken into again. His TV,VCR and other valuables gone. He was convinced it was the same thief he encountered that night. He was also sure it was not the first time someone had pulled their gun on that creep, and then had the thug talk the home owner out of calling the police. My friend thought the guy too calm, cool and collected about it, as though it were well practiced.

He was lucky to have survived his encounter with the thug, as many others died in such circumstances.

Though Heller was specifically about the plight of citizens in the District of Columbia, the Court’s ruling went far beyond that. Not only did the court relieve Washington’s citizens of an onerous law, it defined what the Second Amendment means for all of us, in that the Amendment pertains to an individual right to bear arms.

The dividends of the ruling were almost immediate. The National Rifle Association filed lawsuits against several cities challenging their unfair handgun laws. One of those cities, Wilmette, Illinois, immediately capitulated without a fight. I suspect additional cities will also review their statutes and weigh the cost of waging a losing battle.

The reason I am confident of many dominoes falling is the breadth and width of the ruling. A fairly narrow ruling was expected, especially as there was concern about keeping a swing vote as fickle as Justice Kennedy with the majority, but it turns out he stayed even with the broader ruling; that is certainly to our benefit as the talking heads in the media hold him in high esteem.

Justice Scalia wrote for the majority and was brilliant in his writing. Throughout the ruling he frequently addresses the dissent written by Justices Stevens and Breyer. Like a schoolmaster grading a term paper that was poorly researched, he cuts them to the quick and he does so frequently. It is truly delightful to read.

In short, Justice Scalia goes through the definitions of the words, the history of and court cases dealing with the right to bear arms. He also tears apart the cases like Presser and Miller that the dissent relies on heavily to make their case for the Collective right argument.

Justice Scalia knocks down the idea that we might be restricted to the arms of the 18th century, by saying:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century
are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications… and the Fourth Amendment applies to modern forms of search…the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the
founding.

For those making the argument about the militia and people having small arms in the age of the nuclear weapon he notes:

It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

He assails Justice Steven for his heavy reliance on Miller. He cuts to the point:

The most JUSTICE STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right… Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.

Justice Breyer takes an interesting tact at attacking the majority view. He thought the Colonial-era laws stating that excess gun powder having to be stored in special containers or on the top floor of a home, constituted a gun control law. I note Saul Cornell also made this argument in his book and when he makes public speeches.

Scalia correctly points out this law had more to do with safety in the event of a fire, and had nothing to do with controlling access to arms. After all if the family sleeps on the second floor and a keg of gun powder on the first floor blows up in a fire, the family is doomed.

Breyer also makes a huge deal of various city laws in the colonial period forbidding the firing of guns on holidays like New Years and for a few days there after. This, however, is not a ban; it was certainly nothing more than trying to keep drunks from firing their guns in celebration, not a prohibition on self-defense. He even notes the punishments for such offenses were minor fines of a few shillings--hardly on the scale of an outright ban on ownership of arms.

Breyer then takes the majority to task for not establishing an “interest-balancing inquiry” which would empower judges to “[ask] whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.”

Scalia goes right at Breyer’s argument like a surgeon cutting away. Justice Breyer’s view is, because handguns are a problem in urban areas and that there were colonial era laws controlling handguns (incorrect), the establishment of guidelines for balancing the public interest would not violate the constitution, even if a certain class of firearm, like handguns, were banned from ownership.

To this Scalia says,

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. The very enumeration of the right takes out of the hands of government—even the
Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all.

Justice Scalia ends the decision with these words:

...what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

That is the crux of the matter.

There were many who wanted to indeed declare it extinct, in fact many newspapers including the Chicago Tribune have called for the repeal of the Second Amendment in recent days. Last year Benjamin Wittes, perhaps sensing the outcome of this case, called for the same, and I rebutted him.

Never mind that within the ruling Scalia mentions the Cruikshank case, noting the right to bear arms, like our First Amendment right to free speech, preexists the Bill of Rights and the Second Amendment only recognizes the right, it does not create it. So even if the anti-gun crowd did manage to repeal the Second Amendment, the right would nevertheless exist.

We were correct to have some initial euphoria that this Court got this ruling right, but now that we have celebrated and digested all 157 pages of the ruling, we are left with a few sobering thoughts. Reading the dissent leaves us with the disturbing fact that four of the nine justices on this court were quite prepared to say the Second Amendment was somewhat obsolescent and thus should be extinct. This is stunning when you consider how heavily history and the documents of the time lean to the side of the majority ruling.

Here I will play a bit with what might have happened with this, had history taken a turn to the left eight years ago. In the year 2000 the Florida Supreme Court was going to let the Gore campaign recount ballots in only heavily Democrat-populated counties. The U.S. Supreme Court stepped in and stopped this, thus George W. Bush is President today and as such made the last two appointments to the Court.

The eye-opening fact is President Bush has had to replace two Justices of the U.S. Supreme Court since he was sworn in. Now imagine that had been President Gore making those appointments and the kind of people he would have put on this court. This might have been a very different decision, not based on the law as it was here, but on hysterics and leftist judicial activism, which we see expressed in the dissent.

The next President will more than likely appoint two new Supreme Court Justices. Justice Stevens is now in his 80s and has indicated he wants to step down. Ruth Bader Ginsburg is ill and is ready to go. Who will replace them is a very important matter requiring careful consideration. As close this ruling was, it should be a wake up call to the American people.

Some commentators like George Will assume the Court ruling takes pressure off Senator Obama. On the contrary, I think it adds to the urgency to defeat him. This court has made a very good decision with Heller. But it has made some terrible decisions as well. I fear the GITMO ruling may well cost us an American city.

As we consider the Presidential contest this November we must be thinking about the Court and the ideological/judicial mindset of those to be put on this court. Do we want someone on the court who will consider historic precedents and the law or do we want Justices who will wet their finger and stick it in the wind to see the prevailing whim of the day is? For me that choice is easy, and for that reason I am going to support Senator John McCain in the hopes of appointments of additional strict constructionists to the court. We need jurists who will look for the original intent and thinking of the Founding Fathers.

It would be a pity to see this overturned any time soon, and I can guarantee you that people like Chuck Schumer and Sarah Brady who view this as an activist court and this case as an illegitimate ruling, will do all they can to see this ruling challenged and struck down. Two or more appointments to this court by a President Obama, will make that all the more likely.

The future of the nation is as always in your hands. Your action or inaction this fall will make all the difference in the world in the preservation or destruction of your rights. It is up to you and your ability to get to the ballot box and make the right choice in November.

Tim Inwood is the current Legislative Liaison and Past President of the Clinton County Farmers and Sportsmen Association, an Endowment Member of the NRA and Life Member of the OGCA, and a volunteer for Buckeye Firearms Association.